Counsel Given in Good Faith

Questions of Public Law (1737)

Cornelius van Bynkershoek

BOOK 2, CHAPTER 2No One Is Responsible to the State for Counsel Given in Good Faith, Nor Can Any One Be Justly Punished for Obeying the Commands of the Sovereign

THERE are upstart politicians who propose to punish the giver of counsel according to the consequences of the advice, but they are worthy, surely, of all condemnation. Among these is the author of Political Disquisitions, whether it be Boxhorn or some one else, for the author has chosen to hide his identity. In his Case XIV he approves of the unjust decision of the Arcadians who condemned to death the men who advised helping the Thebans against Alexander the Great. This, he says, was bad counsel, and penalty should be exacted not only for treachery, but also for indiscretion. In saying the latter, he is judging from consequences; and whatever the case, no man is under bond to provide anything in the expression of his opinions but integrity of purpose. What may be rashness in one, may be courage in another, and those who judge from consequences confuse virtues and vices. Furthermore, if you consider the advice rash, why do you adopt it? Surely those who follow foolhardy counsel are no more prudent than those who give it. The Arcadians who advised sending aid to the Thebans were not proved to be acting with intent to deceive, and that was enough. In all cases, political as well as private, the rule of Ulpian ought to obtain: ‘There is no responsibility for counsel given in good faith.’ And that holds true when the counsel given does not benefit the man to whom it is given, as Gains correctly adds. If any one in difficulties desires advice, there are many who can give it, but not one who can vouch for the results; and if you require that, there will not be many who will aid you with counsel.

According to this, if any one gives advice in matters of state, and he does it in good faith, not only is he not held responsible in case of non-success, but he must also be reimbursed by the state for such loss as he may sustain from his own advice. Accordingly, in the treaty that was made in 1351 in behalf of William of Bavaria, it was expressly stipulated, that if any of these cities or any of their inhabitants sustained any loss on account of any acts or any counsel given on behalf of the Count, this should be shared by all. The Estates of Holland also, on July 19 and August 3, 1663, after declaring by way of preface that the expression of opinion on the part of the Estates regarding political matters ought to be entirely unrestricted, proceeded to decree that if any member of the assembly of the Holland Estates or any of their counsellors or any minister of the Estates, or if any widow or child or heir of any of these sustained through violence or semblance of legal action any injury whatever, whether to body, reputation, or goods, on account of advice given in defence of the state, or on account of any decree passed regarding any matter whatsoever, or on account of the execution of such decrees passed at the instance of any one whatsoever, the Estates should reimburse such person or persons fully, as if the injury had been done to the members of the Estates. And this should be done without reference to the individual who had sustained the loss, ‘and so that no lapse of time or prescribed period of years shall deprive them of their right to institute suit and prosecute claims which they may have in consequence thereof. By these words unlimited right of action for recovery is manifestly given, as, for instance, in the case of charges of treason; for in such cases the Greek jurists and most of the Latin agree that there are not statutes of limitation.

I approve of the decree as equitable, for it is quite true that such . action is not taken by those alone who propose it, but rather by the whole body through its individual members. However, I do not equally approve of the special clause that the Estates added to the decree, affirming that it applied only to the future, and that no action for past deeds could be based upon it. Indeed this clause is added at the end of the decree not as issued in the regular volume of edicts and decrees, but as it appears in De Resolutien van Consideratie ten tyde van de Wit, and in Aitzema. I say I do not approve of it, because the decree, whatever may be its force, does not introduce a new measure but contains a right common to all law, as I shall explain more fully, presently.

Furthermore, the decree is correct in saying that he must also be reimbursed who sustains a loss through the execution of the commands of the Estates. Nothing could be more true than that one who obeys the orders of his sovereign, is not only not to be punished, but is also to be reimbursed for losses sustained because of those orders. In every agency this rule obtains, according to well-known decrees of the Roman law which I need not cite. Accordingly, when, in 1667, discussion arose again about this matter in the Estates of Holland, a resolution to the same effect was drawn up and sent by the Estates on December 15 to the Supreme Court of Holland for a decision; and both sections of the court responded in the same terms in 1668, with excellent judgement, according to my opinion. He is therefore a miserable jurist who eagerly approves of the decision in the following case: Magnus, the Count of the Treasury under Julian, was ordered by the latter to burn the temple of the Beristi, which he did; but presently, under Jovian, he was condemned to restore the temple at his own expense. Indeed it is a worthless judge who decides cases according to consequences: what pleased Julian might displease Jovian; but considerations of law require that a man obey the commands of the sovereign in power. The Count burned the temple, but it was Julian who commanded it to be done. Even according to barbaric law the mandate of the sovereign exculpates. He who slays at the command of the king, slays with impunity, according to the Capitularies of Charlemagne, chapter CCXV. ‘For’, it says, ‘the law and the sovereign’s command slay him, and the agent cannot refuse. But the prince and his successors shall defend him and his offspring lest he perish for the deed or suffer harm.’ To use the semblance of political authority for the purpose of fraud, or to allow one’s self to be tricked by it, is indeed impious.

The arguments which are brought against Magnus, the Count of the Treasury, have no validity in my judgement. If you hold that from the very nature of the offence it is not permissible to burn a temple, I disagree. I hold that it may be done because the property belongs to the prince, and there is no one else who has greater power over state affairs. Now if it be a case in which the defendant has advised the prince to destroy his own property, it becomes a question, I think, of whether he advised the prince with fraudulent intent or in good faith. And, further, the heir is not in every case permitted to bring suit of recovery against A because he advised the testator to bestow a gift upon B. For though ‘give’ and ‘lose’ are almost synonymous, the defendant may hold that he gave the advice in good faith, since there is often more profit than loss in a gift. But this depends upon circumstances. If, furthermore, you hold that the authority of the prince is not to be valued so highly that you must obey it to the point of burning a temple, you are again wrong. You permit homicide in self-defence, why then should you hesitate to destroy the temple of your sovereign when he commands it? He spoke truly who said, ‘The anger of the prince is an augury of death,’ and in Tacitus, Curtius Montanus expresses the opinion that ‘we must accept the plea in .defence of those who prefer the destruction of others to the imperilling of their own lives’. Furthermore, we cannot accept the objection raised by our ‘political disputant’ who holds that when the acts of a prince are rescinded, the very mandate in question is also rescinded, so that the defendant has no longer any ground for protection, since, as agent, he acted according to a commission which then existed to his protection, but now no longer exists. But surely the defendant committed no wrong after the rescinding of the acts, and it would be most inequitable to enter it against him that he was not a prophet. I know, of course, that a commission is no ground for excuse in criminal acts, and that there can be no agency except in legal affairs, but that applies only to private law. When the sovereign is the principal, nothing can be considered illegal, even though the act otherwise fall into that category, otherwise the idea of sovereignty could not exist. If a sovereign declares a war and issues orders to levy troops and collect arms, supplies, and other such things, shall they who have these matters in charge first deliberate whether the war is just or not, and shall they obey if they decide it just, and disobey if they decide it unjust? In such a case, as you see, sovereign power would be shattered, and the sovereign could no longer give his commands, but would have to spend his time in disputes with his subjects.

From the aforesaid, it results that the acts and judgements in Holland, pronounced against Barneveldt, Hoogerbeets, and Grotius, in 1618 and 1619, rest on the sole principle that a judge is assumed to administer justice even when his decision is unjust. If you examine all the charges that were brought against them, you will find that they were condemned solely and simply because of advice they gave the state and the magistrates, or because they executed the orders imposed upon them by the Estates and the magistrates, and that too in entire good faith. They therefore each of them had the right to bring suit for breach of contract against their principals to recover losses which they had sustained, in so far as restitution could be made. As for Barneveldt, restitution was impossible, since he had been condemned to death, but Grotius had prudently provided against the storm. Being syndic, and therefore the agent of the magistrate of Rotterdam, he had supplied himself with a warrant of indemnity given by the magistrate. In accordance with his bond, the magistrate of Rotterdam was ordered by the Court of Holland on November 3, 1651, in a suit of restitution, to pay the widow of Grotius the annual salary of syndic due up to the time when he had accepted a post elsewhere. And the Supreme Court, as I find in its records, not only approved of this decision on December 21, 1652, but also ordered the magistrate to make restitution for all losses which Grotius had sustained in the performance of his official duties. To be sure, on December 6, 1662, the heirs of Grotius renounced claim to the awards, and to inheritance of the properties of Grotius and his wife, and to all other attached privileges. The Estates of Holland recognized this renunciation by the act of December 9, 1662; but this was not done gratis the heirs did not renounce their claims for naught. Aitzema has told how the Estates made subventions to the heirs, and there the reader may get his facts. Aitzema also writes that aid was bestowed upon the heirs of Barneveldt, but I have searched in vain for confirmation of this statement. Indeed, when the heirs of Hoogerbeets petitioned the Estates of Holland either to submit their case to trial or allow them to carry it to court, it was decreed on December 20, 1663, that three annual payments of 16 Carolines each should be made to the three descendants of Hoogerbeets. The Estates added, however, that they made this decree because the city of Leyden had made a special promise of indemnity to Hoogerbeets, and also that this decree should in nowise be recognized as prejudicial to the validity of the decisions rendered in 1618 and 1619, since it was in the interest of public peace that those decisions should remain valid. It might have been better to have rescinded those decisions, and thus publicly revoke a public wrong, since there is no good ground for the Estates’ preferring to base their equitable edict upon that promise of indemnity rather than upon the common law; for even without pledge of indemnity agents must be kept secure from damage in performing their commissions, a fact that no jurist questions.